Affirmative action : the sword versus shield debate continues

Abstract

Affirmative action is a topic with a tendency to evoke much emotion and spark heated debate amongst South Africans from all walks of life. Yet few can deny the need for measures of some sort to address the racial inequality in the labour market experienced during the apartheid years. With this in mind, I will first give a broad overview of why affirmative action was necessary in South Africa as a tool for social change. Secondly, I will sketch the landscape of South Africa's jurisprudence on affirmative action, touching on relevant legislation, though limiting the discussion to whether affirmative action is a right in the hands of the scorned employee or a defence to be raised by the employer against that employee, with reference to case law. Lastly, I will attempt to show how the labour courts have all answered this question unanimously in recent cases, in response to the decisions of Harmse v City of Cape Town ((2003) 24 ILJ 1130 (LC)) and Dudley v City of Cape Town & Others ((2004) 25 ILJ 305 (LC)).